# Commonwealth v. Brown

> Supreme Court of Pennsylvania · October 17, 2018 · 196 A.3d 130

URL: https://www.frixlaw.com/law-library/cases/6358387

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Lavar D. BROWN
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 17, 2018
- **Citations:** 196 A.3d 130
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Saylorbaertodddonohuedoughertywechtmundy
- **Judges:** Baer, Donohue, Dougherty, Mundy, Saylor, Todd, Wecht
- **Cited by:** 303 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6358387

## How later opinions describe it (automated extraction)

- explaining that “PCRA court granted an evidentiary hearing to receive and consider [affiant’s] testimony, but [affiant] failed to appear” and that, “[a]bsent testimony from [affiant] to support the contentions in his affidavit, the PCRA court properly concluded that [PCRA peti…
- holding that Commonwealth’s concession that trial counsel rendered ineffective assistance of counsel in sentencing phase of death penalty case did not obligate the post-conviction court to accept this conclusion and vacate his death sentence, as the issue of ineffectiveness wa…
- explaining that the judicial branch is not required to adopt the parties’ agreement on legal conclusions; “a district attorney’s concession of error is not a substitute for independent judicial review”
- rejecting claim “that trial counsel was ineffective for failing to obtain neuropsychological testing that would have revealed brain damage” where defense mental health expert “did not recommend to trial counsel that a neuropsychologist be hired, and [] did not ask counsel to s…
- declining to vacate death sentence in collateral proceeding where Commonwealth confessed error; “After the jury … recommend[ed] a death sentence, the district attorney lost any prosecutorial discretion to alter that verdict. If the law were otherwise, district attorneys would …

## Opinion text

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE DONOHUE
In this capital appeal, both Appellant Lavar D. Brown ("Brown") and the Commonwealth of Pennsylvania ("Commonwealth") challenge the order of the Court of Common Pleas of Philadelphia County *137 dismissing Brown's petition for relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 - 9546 ("PCRA"). In this case, Brown and the Commonwealth have filed a "Joint Application for Leave to File Post-Submission Communication and Joint Motion to Vacate Death Sentence, Remand for Resentencing to Life Without Parole, and Then Transfer Appeal To Superior Court ("Joint Motion"), in which they request that this Court grant PCRA relief as to Claim VI in Brown's PCRA petition, which asserts that trial counsel provided ineffective assistance during the sentencing phase of the trial. Specifically, the parties request that this Court order that Brown's death sentence be vacated, that his case be remanded to the Court of Common Pleas of Philadelphia County for the limited purpose of resentencing Brown to life without parole, and that the case then be transferred to the Superior Court for merits disposition of Brown's guilt phase claims. For the reasons that follow, we deny the Joint Motion and affirm the PCRA court's denial of Brown's PCRA petition.
On direct appeal, this Court described the basic factual background underlying Brown's convictions for the shooting death of Robert Crawford ("Crawford"):
On December 10, 2003, [Brown], then age 24, and Rahsaan Anderson [ ("Anderson") ] were standing on Girard Avenue in Philadelphia, near a school, subway station, gas station, and restaurant. Around 3:00 p.m., [Brown] saw Robert Crawford [ ("Crawford") ] crossing Girard Avenue, and stated, "There go that pussy." N.T., 5/26/2005, at 33. [Brown] approached Crawford and, without provocation, shot him multiple times in the back.
After shooting Crawford, [Brown] and Anderson began to run but were quickly deterred by two police officers in a patrol vehicle. One officer stopped and frisked Anderson, but found no weapon. The second officer saw [Brown] across the street with his right hand in his jacket pocket and ordered him multiple times to show his hands. [Brown] refused to remove his hand from his pocket and instead ran back toward the crime scene and down an alley. The officer pursued him, commanding him to stop. [Brown] continued to run, and other officers joined the chase. [Brown] eventually crawled beneath a [Jeep Cherokee]; the officers pulled him out and took him into custody. A .380 caliber semi-automatic firearm was found near the vehicle's right rear axle.
Commonwealth v. Brown , 605 Pa. 103 , 987 A.2d 699 , 703 (2009).
The Commonwealth charged Brown with multiple crimes, including first-degree murder. Trial commenced on May 25, 2005 before the Honorable Teresa Sarmina, at which several eyewitnesses testified. Royal Smith ("Smith"), a youth advocate worker, identified Brown in court as the shooter, unequivocally stating that she "knew it was him because I was looking right at him. I couldn't believe it." N.T., 5/25/2005, at 63. She testified that she was sitting in her minivan, parked in a lot shared by a McDonald's restaurant and a gas station, waiting to pick up her client, Christine Ellison ("Ellison"), from the nearby William Penn High School. Id. at 48-49. At approximately 3:05 p.m., Ellison got into the front passenger seat of the minivan. As Smith prepared to pull out of the parking lot, she heard gun shots to her left. Id. at 52-53. She testified that she immediately turned in that direction and observed Brown shooting Crawford at close range. Id. at 54. After Crawford collapsed, Smith observed Brown shoot him again. Id. Brown was the only individual that Smith saw brandish a gun. Id. at 61-62.
*138 Smith testified that she was approximately four to five feet away from the incident, it was light outside, nothing prevented her from seeing Brown's face, and she was close enough to see Brown's silver handgun emitting blue light. Id. at 51, 55, 58. Smith marked her location and Brown's at the time of the shooting on a to-scale diagram of the crime scene (hereinafter, the "Diagram"). Id. at 82. After observing Brown shoot Crawford, she saw Brown run down Girard Avenue with a "light-skinned guy," later identified as Anderson, towards a Rite Aid. Id. at 62. To Smith's surprise, Brown then ran back toward the crime scene and by the passenger side of her minivan, at which time she got another good look at his face, as "he was running extremely slow." Id. at 70-73. After police apprehended Brown minutes later, they handcuffed him and brought him back to the crime scene, where Smith identified him for police as the shooter. Id. at 77-78.
Ellison testified that she had just been released from school, and upon getting into the front passenger seat of Smith's minivan, she observed a dark-skinned man wearing camouflage pants shoot Crawford with a silver handgun. According to Ellison, the shooter and Crawford were about three to four feet from Smith's minivan when this occurred. Id. at 151. She marked her approximate location at this time on the Diagram and testified that she clearly saw the shooter's face, as nothing impeded her view of his face. Id. at 154-55. Ellison then testified that Smith pulled over to the side of Girard Avenue, at which time she observed the shooter and a light-skinned man run towards a Rite Aid. Id. at 160. Like Smith, Ellison stated that she never saw the light-skinned man with a gun, nor did she see him shoot anyone. Id. Ellison indicated that when the shooter ran back towards the minivan, she observed his face again before he disappeared down an alley. Id. at 164-65, 167-68. When police returned to the scene minutes later with Brown in handcuffs, Ellison identified him for police as the shooter. Id. at 170-71.
When asked on direct examination whether she saw the shooter in the courtroom, Ellison replied that she did not know. Id. at 149-50. On redirect, however, she identified Brown as the shooter, explaining that she had not previously identified him in court because she had been unable to get a good look at him. Id. at 214. Additionally, she stated that she independently recognized Brown because on a prior occasion predating the shooting he had asked her for her phone number. Id.
Anderson testified that he "barely knew" Brown and had only encountered him "a couple of times around the neighborhood" prior to the shooting. N.T., 5/26/2005, at 24-25. Anderson did not know Crawford. Id. at 33. On the day in question, Anderson testified that he was standing on his porch when he saw Brown walking down the street. Id. at 26. He and Brown started talking and then walked to a store where Anderson purchased food and cigarettes. Id. As they exited the store and walked across the street towards a gas station, they saw Crawford exit the same store and walk towards the area where Brown and Anderson were standing. Id. at 29. According to Anderson, Brown then referred to Crawford as a "pussy" and "turned around and just started shooting" him approximately four to six times with a silver hand gun. Id. at 35-36. Anderson described the clothing Brown was wearing - camouflage pants and a black jacket. Id. at 36.
Anderson estimated that Crawford and Brown were approximately fifteen feet apart during the shooting, while Anderson was about six feet from Brown. Id. at 34-35. Anderson marked his, Brown's and *139 Crawford's approximate locations on the Diagram. Id. Anderson testified that when Brown began firing gun shots, he got scared and ran away toward the Rite Aid. Id. at 38-39. Two police officers briefly stopped and searched him, but upon finding no weapons, they released him and instead pursued Brown. Id. at 43-48. That evening, the police detained Anderson and took him to the police station, where he provided a witness statement implicating Brown and detailing the above sequence of events. Id. at 54.
Angela Sutton ("Sutton") testified that she and her friend, Janell Gonzalez ("Gonzalez"), 1 were crossing the street when they "saw a guy in a white skully and like a black jacket and some blue jeans shoot another guy in the back, and then he fell." N.T., 5/27/2005, at 16. Because Sutton was attempting to help Crawford, she indicated that she did not observe the police chase. Id. at 24. Sutton stated that she did not see the shooter's face, but she testified that the shooter was darker-skinned than she was and approximately five feet seven to five feet nine inches tall. Id. at 31. Sutton also confirmed that "after everything was over[,]" she saw a man wearing a red coat with the police but indicated that he was not the shooter because he was lighter-skinned and thinner than the shooter. Id. at 33-35.
Leo Rahill ("Rahill"), the Commonwealth's crime scene investigator, was shown the Diagram utilized during the examinations of other witnesses. N.T., 5/26/2005, at 302. On cross-examination, Rahill testified that based upon their marks on the Diagram, Anderson and Smith were approximately 160 to 240 feet apart. Id. at 328. Rahill marked on the Diagram where he found three fired cartridge casings and where a sample of Crawford's blood was collected. Id. at 305, 312. Rahill estimated that the distance from where Crawford was located to Smith's minivan was approximately 110 feet. Id. at 329-31.
Officer John Cannon ("Cannon"), the Commonwealth's firearms expert, testified that he received for testing the three fired cartridge cases found by Rahill from the crime scene. Id. at 115. When asked how far he would expect a fired cartridge casing to travel when ejected, Cannon explained that it could "literally drop at my feet" or "it could go as far as fourteen feet." Id. at 142. He indicated that he had never seen a casing fly as far as 100 feet. Id. at 143. He acknowledged that, "depending on how the [fired cartridge casing] lands, it could bounce a little bit where it was or it could hit and actually go a couple feet." Id. at 145. He also testified that at a busy crime scene where bystanders and police officers are running, a number of factors could cause the casing to move before its discovery and collection. Id. at 150.
On May 31, 2005, the jury convicted Brown of first-degree murder, 18 Pa.C.S § 2502(a), possessing an instrument of a crime, 18 Pa.C.S. § 907(a), and carrying a firearm without a license, 18 Pa.C.S § 6106. On June 2, 2005, following the penalty phase of the trial, the jury unanimously returned a verdict of death, finding no mitigating circumstances and two aggravating circumstances: (1) that Brown knowingly created a grave risk of death to additional individuals other than the victim in the commission of the offense, 42 Pa.C.S. § 9711(d)(7), and (2) that Brown had been convicted of another murder committed in any jurisdiction, 42 Pa.C.S. § 9711(d)(11). 2 42 Pa.C.S. § 9711(f). Accordingly, *140 the trial court sentenced Brown to death. 42 Pa.C.S. § 9711(g). On December 29, 2009, this Court affirmed Brown's judgment of sentence, Commonwealth v. Brown , 605 Pa. 103 , 987 A.2d 699 (2009), and on October 4, 2010, the United States Supreme Court denied his petition for writ of certiorari. Brown v. Pennsylvania , 562 U.S. 844 , 131 S.Ct. 76 , 178 L.Ed.2d 52 (2010).
On December 28, 2010, Brown filed his first pro se PCRA petition. The Federal Community Defender Office entered its appearance on his behalf, and on May 16, 2014 it filed an amended PCRA petition. The Commonwealth filed a motion to dismiss on January 30, 2015, and Brown filed a counseled response on June 24, 2015, raising fourteen issues.
On November 6, 2015, Judge Sarmina granted Brown an evidentiary hearing limited to one issue - whether trial counsel was constitutionally deficient for failing to interview and present Joseph Hayes ("Hayes") as a witness at trial. Hayes purportedly owned the Jeep Cherokee under which the police found Brown and the murder weapon. At the date and time of the scheduled evidentiary hearing (January 15, 2016), Hayes did not appear. Accordingly, on April 7, 2016, the PCRA court issued a lengthy (sixty-three-page) notice pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure ("Rule 907 Notice") of its intent to dismiss Brown's PCRA petition, advising Brown that he could submit additional information in support of his claims within twenty days of the notice. On June 24, 2016, the PCRA court dismissed Brown's PCRA petition. In response to Brown's subsequent notice of appeal and his statement of issues complained of on appeal ( Pa.R.A.P. 1925(b) ), the PCRA court issued a written opinion rejecting Brown's arguments.
Brown now appeals the denial of PCRA relief to this Court. 3 In his principal brief, Brown raised the following thirteen issues for our consideration:
I. Was [Brown] denied effective assistance of counsel because trial counsel opened the door to harmful evidence; failed to investigate, discover and present evidence to attack identifications made by two eyewitnesses, which would have supported appropriate Kloiber instructions as to these witnesses; and did the trial court give an erroneous Kloiber instruction and counsel were ineffective?
II. Was [Brown] denied effective assistance of counsel because trial counsel failed to adequately investigate, uncover and utilize evidence to impeach and rebut Commonwealth witness Rahsaan Anderson and failed to obtain a cautionary jury instruction with regard to this witness' credibility; and did the Commonwealth violate Brady ?
III. Was [Brown] denied due process and effective assistance of counsel because the prosecutor misrepresented the testimony of Commonwealth witness *141 Angela Sutton, without objection from trial counsel?
IV. Was [Brown] denied effective assistance of counsel because trial counsel failed to investigate, discover and present evidence rebutting Commonwealth witnesses who connected [Brown] to the murder weapon and that the Commonwealth violated Brady by failing to disclose impeachment evidence?
V. Were trial counsel constitutionally ineffective for failing to retain and consult with an eyewitness identification expert at trial?
VI. Was [Brown]'s counsel ineffective at sentencing for failing to investigate, develop and present important mitigating evidence?
VII. Was [Brown] denied a reliable sentencing because the jury was tainted by outside influence and the Commonwealth improperly argued non-statutory aggravation and dismissed [Brown]'s mitigation as an excuse?
VIII. Was [Brown] denied due process, reliable sentencing and effective assistance of counsel because the Commonwealth introduced into evidence a constitutionally infirm prior homicide conviction at the penalty hearing?
IX. Was [Brown] denied due process, a reliable sentencing, the right to confrontation, and effective assistance of counsel by the Commonwealth's presentation of irrelevant, inflammatory and false hearsay testimony and argument about [Brown]'s prior homicide trial without adequate challenge from counsel?
X. Was [Brown] denied due process, a reliable sentencing and effective assistance of counsel because the jury was never instructed that he would be statutorily ineligible for parole if he were sentenced to life and prior counsel never raised this issue?
XI. Was [Brown] denied his right against self-incrimination, due process, a reliable sentencing and effective assistance of counsel by the trial court's improper decision to allow the Commonwealth to introduce evidence of [Brown]'s purported lack of remorse and appellate counsel's failure to adequately litigate this issue?
XII. Was [Brown] prejudiced by the cumulative effects of the errors in his case?
XIII. Did the lower court err in denying [Brown] full, fair and reliable PCRA review?
Brown's Brief at 2-3 (some issues reordered for ease of review). On September 19, 2017, the Commonwealth filed a lengthy (ninety-eight-page) brief in which it opposed any and all relief on these thirteen issues. On November 13, 2017, Brown filed a reply brief. In accordance with section 3(B) of this Court's Internal Operating Procedures with respect to PCRA appeals, the case was submitted on the briefs without oral argument.
On April 9, 2018, prior to this Court's issuance of an opinion deciding Brown's appeal from the PCRA court's ruling, Brown and the Commonwealth filed the Joint Motion. In the Joint Motion, the Commonwealth confesses error with respect to Claim VI in the above-listed issues raised by Brown in this appeal, requesting that this Court grant Brown relief as a result of ineffective assistance of trial counsel during the penalty phase of the trial. Joint Motion, ¶ 5. The Commonwealth did not provide any specificity with respect to its newfound agreement regarding the nature of trial counsel's alleged ineffectiveness, instead stating merely that it "agrees, and respectfully requests, that this Court grant [Brown] relief on Claim VI set forth in [Brown's] Brief...." Id. In the Joint Motion, the parties request that *142 this Court effectuate three types of relief: (1) grant relief on Claim VI and vacate Brown's death sentence; (2) remand the case to the Court of Common Pleas for Philadelphia County for the limited purpose of resentencing Brown to a sentence of life without parole; and (3) transfer the case to the Superior Court for a merits disposition of Brown's guilt phase claims.
By order dated April 23, 2018, this Court granted that part of the Joint Motion requesting leave to file a post-submission communication. With respect to the above-listed requests for relief, we observed that the Joint Motion offers no substantive development of the reasons why this Court can, or should, issue an order in the form sought by the parties. Accordingly, this Court directed the parties, either individually or collectively, to file a supplemental brief or briefs in support of the Joint Motion. In this regard, we specifically instructed the parties to delineate the legal authority that would support this Court's authorization, in a capital, post-conviction case, to accept an agreement requiring vacation of a PCRA court's decision to deny relief from a death sentence, absent any actual merits review of the underlying claim. We further ordered the parties to provide legal authority for their request to remand the case with instructions to the PCRA court to impose a life sentence on remand, and to discuss the express statutory commands of the PCRA. We also advised the Commonwealth that, to the extent that it considered it useful to inquire into the merits of Claim VI, it could file an application seeking leave to amend the merits brief that it previously submitted as of record advocating for the denial of any PCRA relief (including with respect to Claim VI). Finally, we directed our Prothonotary to provide notice of our order to the Attorney General of Pennsylvania and invited him to participate as an amicus and file a brief.
In response, Brown and the Commonwealth have each filed briefs in support of the Joint Motion. In his supplemental brief, Brown argues that the district attorney is "the sole public official charged with the legal responsibility of conducting in court all criminal and other prosecutions, in the name of the Commonwealth," and that his prosecutorial discretion extends to all stages of criminal litigation. Brown's Supplemental Brief at 2, 11. Contrasting the district attorney's role with that of this Court, Brown contends that this Court's "neutral role precludes it from acting as an advocate or interfering with the District Attorney's lawful exercise of discretion." Id. at 11. According to Brown, in light of these "distinct structural roles," this Court "must defer to the District Attorney's exercise of discretion in conceding sentencing error." Id. at 12. Failing to do so, Brown insists, would violate his "constitutional rights and would take this Court far afield from its proper and traditional role." Id. at 12. Alternatively, Brown claims that even if this Court were to decline to accept the "stipulation" of the parties without judicial review, we should nevertheless, in the interests of justice and judicial economy, grant the Joint Motion, as the certified record reflects that Claim VI is meritorious because the PCRA court clearly erred in concluding that trial counsel did not provide ineffective assistance during the penalty phase of the trial. Id. at 7, 13-17.
The Commonwealth's arguments largely mirror those of Brown. While this Court has broad powers, the Commonwealth insists that only district attorneys, as a result of their "wide grant of prosecutorial discretion," 4 have the "power to decide *143 whether to seek or continue to seek the death penalty in view of the facts of any particular case." Commonwealth's Supplemental Brief at 2. According to the Commonwealth, when a district attorney makes a "reasoned fact and policy-based decision not to defend a particular conviction or sentence," this Court must immediately remand for imposition of the agreed-upon relief, as this Court may not "second-guess legitimate exercises of prosecutorial discretion." Id. at 3. Though acknowledging that the United States Supreme Court has indicated that some cases require judicial review on the merits of confessions of error by prosecutors, the Commonwealth claims that these cases were unique instances in which an interpretation of constitutional law or criminal statutes - a "quintessentially judicial function" - was required. Id. at 7 n.6. In the present case, where the confession of error involves factual and policy-based decisions - a "quintessentially prosecutorial function" -- no judicial review is necessary. Id.
Alternatively, if the Court will not accept the agreement of the parties set forth in the Joint Motion without conducting merits analysis, the Commonwealth recommends that we remand the case to the PCRA court for further consideration in light of said agreement. Id. at 9. The PCRA court, in denying relief, did not have before it the Commonwealth's confession of error and thus should be permitted to reconsider its decision to deny relief in this light. Id. at 11-12. Finally, if this Court rejects its first two alternative courses of action, the Commonwealth presents argument based upon the certified record in support of its confession of error, now contending that trial counsel in fact provided ineffective assistance of counsel in the penalty phase of Brown's trial. Id. at 12-19. Although these arguments are in direct contradiction to those set forth in the Commonwealth's merits brief, the Commonwealth has not filed an application seeking leave to amend its merits brief to conform its arguments (especially with respect to Claim VI) to those now set forth in its supplemental brief. The Commonwealth was given express permission to file such an amended brief in our order dated April 23, 2018.
In accordance with our invitation to do so, the Attorney General filed an amicus brief. Therein, the Attorney General stresses that he is a "steadfast advocate for broad prosecutorial discretion." Attorney General's Brief at 2. Nevertheless, the Attorney General disagrees with the parties that this Court must, or even may, accept confessions of error by a prosecutor without conducting judicial merits review. Citing to cases from both this Court and the United States Supreme Court, the Attorney General argues that if courts were required to accept confessions of error without merits review, they would not be acting as judges but rather as mere rubber stamps. Id. at 3. Instead, the Attorney General asserts that a prosecutor's confession of error is "properly viewed not as dispositive, but as persuasive, often highly persuasive." Id. While the Attorney General *144 takes no position with respect to the merits of Brown's ineffectiveness claim, he disagrees with the Commonwealth's recommendation to remand the case to the PCRA court for further consideration in light of the confession of error. Id. at 21-27. The Commonwealth's current position with respect to the merit of Brown's ineffectiveness claim in Claim VI is now aligned with that of Brown - which position was thoroughly litigated to conclusion in the PCRA court. Id.
During the penalty phase of Brown's trial, a jury of Philadelphia citizens was called upon to make the enormously difficult decision of whether to impose the death sentence, after hearing the evidence and instructions on the law. A representative cross section of the community must, of necessity, bear the responsibility to "express the conscience of the community on the ultimate question of life or death" in particular cases. Witherspoon v. Illinois , 391 U.S. 510 , 519, 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). The jury in this case having done so, neither the parties, by agreement, nor this Court, absent a finding of legal error, have the power or ability to order that the jury's verdict be commuted to a life sentence without parole. 5
Neither Brown nor the Commonwealth have cited to any persuasive authority to support a contrary conclusion. In this regard, we note that Brown seeks relief under the PCRA, pursuant to which the General Assembly has expressly limited this Court's power to award relief. 6 Commonwealth v. Pitts , 603 Pa. 1 , 981 A.2d 875 , 878 (2009) ("In PCRA proceedings, an appellate court's scope of review is limited by the PCRA's parameters...."). Of relevance here, section 9543(a) provides that "[t]o be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence," inter alia, that the petitioner is "awaiting execution of a sentence of death for the crime," and that the conviction or sentence resulted from "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(1)(ii), (a)(2)(ii). Moreover, section 9546(a) provides that the court "shall order appropriate relief" only if it "rules in favor of the petitioner." 42 Pa.C.S. § 9546(a). Accordingly, to be eligible for relief under the PCRA, Brown must plead and prove that his counsel provided ineffective assistance during the penalty phase of his trial, *145 and this Court must rule in his favor. As a result, the PCRA expressly requires Brown to prove the allegations of ineffectiveness of counsel and for the courts to rule in his favor - finding legal error to permit a grant of relief. In short, the PCRA requires judicial merits review favorable to the petitioner before any relief may be granted. A confession of error by the Commonwealth does not constitute a judicial ruling in Brown's favor, and thus is insufficient for any grant of relief under the PCRA.
The arguments of both Brown and the Commonwealth do not focus on the statutory language of the PCRA. Instead, they contend that regardless of procedural posture, in any case that has its genesis in the exercise of the district attorney's prosecutorial discretion, the prosecutor's confession of error obviates the need for judicial review. In support of this position, Brown and the Commonwealth focus on the relative roles of this Court, through the exercise of its judicial powers, and district attorneys, through their exercise of prosecutorial discretion. Brown states that this Court wields "[a]ll powers necessary and appropriate in aid of its original and appellate jurisdiction which are agreeable to the usages and principles of law." Brown's Supplemental Brief at 4 (citing 42 Pa.C.S. § 502(1) ). The Commonwealth further reminds us that the Court possesses "every judicial power that the people of the Commonwealth can bestow under the Constitution of the United States, whether enumerated in the Constitution or residual." Commonwealth's Supplemental Brief at 3 (citing In re Bruno , 627 Pa. 505 , 101 A.3d 635 , 666 (2014) ). According to the Commonwealth, this grant of power permits this Court to accept the agreement embodied in the Joint Motion without judicial review. Id. at 4 (citing Commonwealth v. Stipetich , 539 Pa. 428 , 652 A.2d 1294 , 1295 (1995) ). Brown similarly argues that Pennsylvania law delegates solely to district attorneys the decision of whether to seek and defend death penalties, and that this discretion continues throughout "all stages of litigation." Id. 10-11. Because this Court must instead maintain a "neutral role," Brown argues that it may not interfere with a district attorney's "lawful exercise of discretion" - and thus, as a result of these "unique structural roles," this Court "must defer to the District Attorney's exercise of discretion in conceding sentencing error." Id. at 12.
Brown and the Commonwealth misconstrue the nature of a district attorney's prosecutorial discretion. As cogently explained by the Attorney General, the scope of prosecutorial discretion changes as a criminal case proceeds, narrowing as the case nears completion. At the outset, a prosecutor has almost unfettered power to charge, or not charge, as he or she sees fit. 7 Once charges are filed, the prosecutor may withdraw them by nolle prosequi, subject to judicial oversight. Pa.R.Crim.P. 585. A prosecutor may also choose to enter into a plea agreement, again subject to appropriate judicial oversight. Pa.R.Crim.P. 590. 8 The decision whether the Commonwealth will seek the death penalty is also left to the prosecutor, though this decision, which is made at the time of arraignment, is also potentially subject to some pre-trial judicial review. See *146 Commonwealth v. Buck , 551 Pa. 184 , 709 A.2d 892 , 896 (1998) ("If no evidence is presented in support of any aggravating circumstance, the trial court may rule that the case shall proceed non-capital.").
After trial and the entry of a capital verdict, however, a district attorney's prosecutorial discretion narrows significantly. There is an automatic appeal to this Court from a death sentence, 42 Pa.C.S. § 9711(h), over which the prosecutor has no statutory power to interfere. A representative cross section of the community has issued its decision, and the prosecutor, having sought and obtained the death sentence, may not thereafter unilaterally alter that decision. The community now has an interest in the verdict, which may thereafter be disrupted only if a court finds legal error. Contrary to the Commonwealth's representation that a district attorney remains free at "all stages of capital criminal litigation" to make a "reasoned fact and policy-based decision" as to what he or she believes the appropriate sentence should be, after seeking and obtaining a death sentence, the prosecutor's discretion at this point is limited to attempts, through the exercise of effective advocacy, to persuade the courts to agree that error occurred as a matter of law. Prosecutorial discretion provides no power to instruct a court to undo the verdict without all necessary and appropriate judicial review.
Cases from both this Court and the United States Supreme Court confirm this conclusion, namely that a district attorney's concession of error is not a substitute for independent judicial review. In Commonwealth v. Chimenti , 510 Pa. 149 , 507 A.2d 79 (1986), after the Philadelphia District Attorney's Office obtained a conviction of first-degree murder, it was approached by Chimenti's new appellate counsel and advised that trial counsel had improperly acted contrary to Chimenti's best interests, including by the subornation of perjury against him. Id. at 80. The district attorney struck a deal with Chimenti, pursuant to which he would agree to vacate the first-degree murder conviction and replace it with a conviction for murder generally (not to rise higher than third-degree), in exchange for Chimenti's cooperation in an investigation and prosecution of his trial counsel. Id. The terms of this deal, which were set forth in a petition presented to the president judge of the Superior Court, requested an order that the case be remanded to the trial court for assignment to a hearing judge, who would vacate Chimenti's conviction and accept his negotiated plea. Id.
This Court rejected enforcement of the petition jointly filed by the district attorney and Chimenti. According to this Court, the deal "reduced the prospective hearing judge to a 'rubber stamp,' as he or she was empowered only to perform a ministerial function" - something that neither the president judge nor the Superior Court had any power to do. Id. at 83. Moreover, and more importantly, enforcement of the agreement would reverse a jury's verdict without any judicial review . We stated, in the strongest terms, that such an action would "abrogate a jury's verdict without any semblance of a record," an action that "we can in no way condone." Id. ; see also id. at 84 (Papadakos, J., concurring) (observing that the vacation of a jury's verdict of first-degree murder "without any trial errors shown," was "reminiscent of the Star-Chamber"). In response to the district attorney's contention that there were "potential problems with the verdict," this Court responded that "before we could accept that contention, a review of the merits on the record would be necessary." Id. at 83 n.9.
More recently, in Commonwealth v. Wright , 609 Pa. 22 , 14 A.3d 798 (2011), five *147 years after the defendant's confession resulted in a conviction of first-degree murder, he filed a PCRA petition requesting DNA testing. The Superior Court applied a per se rule, holding that, in all instances, a voluntary confession precluded any reasonable possibility that DNA testing would produce exculpatory evidence. Id. at 807-08 . On appeal to this Court, the Commonwealth conceded that that the Superior Court's application of a per se rule was error. Id. This Court, however, refused to accept this concession of error without undertaking our own review, stating that "even though the parties agree on this essential point, we are obliged to conduct our own independent judicial review...." 9 Id. at 808 .
The Supreme Court has likewise refused to act on concessions of error without conducting appropriate judicial review. 10 In *148 Young v. U.S. , 315 U.S. 257 , 62 S.Ct. 510 , 86 L.Ed. 832 (1942), for instance, a physician was convicted for violating a federal anti-narcotics statute. The government conceded that the lower court had misinterpreted a portion of the statute providing an exception from prosecution. Id. at 258 , 62 S.Ct. 510 . While the Court ultimately agreed with the government's (and the defendant's) interpretation of the relevant statutory language, it refused to do so without judicial review, indicating that while the government's confession "is entitled to great weight," the obligation to properly apply the law rested with the Court rather than on the agreement of the parties.
The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as that of the enforcing officers. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.
Id. at 258-59 , 62 S.Ct. 510 (citation omitted).
Similarly, in Sibron v. New York , 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968), the government confessed error with respect to the constitutionality of a defendant's conviction for unlawful possession of heroin. Reaffirming its decision in Young , the Court emphasized that "[i]t is the uniform practice of this Court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained." Id. at 58 , 88 S.Ct. 1889 . The Court further observed that "[t]he District Attorney for Kings County seems to have come late to the opinion that this conviction violated Sibron's constitutional rights." Id. at 58-59 , 88 S.Ct. 1889 . Because the highest appellate court in the state of New York had affirmed the conviction, the Court stated that "[f]or us to accept [the District Attorney's] view blindly in [these] circumstances" would be a "disservice to the State of New York and an abdication of our obligation to lower courts to decide cases on proper constitutional grounds...." Id. at 59 , 88 S.Ct. 1889 ; see also Thompson v. United States , 444 U.S. 248 , 250, 100 S.Ct. 512 , 62 L.Ed.2d 457 (1980) (deciding, based upon "an independent examination of the record," to grant a remand for further proceedings, but refusing to grant the specific relief requested by the government); Mayberry v. Pennsylvania , 382 U.S. 286 , 286, 86 S.Ct. 438 , 15 L.Ed.2d 336 (1965) (granting relief in accordance with a concession of error based upon "an examination of the papers in the case").
*149 Brown and the Commonwealth argue that these cases have no application here because they involved issues of statutory interpretation and/or constitutional law (areas involving "quintessentially judicial functions"), whereas the present case involves a "factual and policy-based decision" not to continue pursuit of a death sentence (a "quintessentially prosecutorial function"). 11 See Commonwealth's Brief at 7 n.6. We disagree. These cases address the respective roles and powers of prosecutors and courts with respect to jury verdicts. After the jury in this case reached its decision to enter a verdict recommending a death sentence, the district attorney lost any prosecutorial discretion to alter that verdict. If the law were otherwise, district attorneys would have the powers of courts, while courts would be reduced to mere rubber stamps (as we recognized in Chimenti ). As the Attorney General indicates, if the "power" of a court amounts to nothing more than the power "to do exactly what the parties tell it to do, simply because they said so and without any actual merits review, it is not judicial power at all. It is a restriction on power." Attorney General's Brief at 8 (emphasis in original).
Finally, we note that the Philadelphia District Attorney's Office, through the exercise of its prosecutorial discretion, actively sought and obtained a death sentence for Brown. It cannot now seek to implement a different result based upon the differing views of the current office holder with respect to the prior exercise of prosecutorial discretion. Elections alone cannot occasion efforts to reverse the result of judicial proceedings obtained by the prior office holder. Every conviction and sentence would remain constantly in flux, subject to reconsideration based upon the changing tides of the election cycles.
We also reject the alternate requests of Brown and the Commonwealth to remand this case back to the PCRA court for reconsideration in light of the Commonwealth's concession of error. While it is true that no such concession was before the PCRA court when it decided to dismiss Brown's PCRA petition, this does not constitute grounds for a remand. While, in its supplemental brief, the Commonwealth sets forth arguments in support of its current position that Brown's Claim VI is meritorious, those arguments are not substantially different from the arguments that Brown's counsel presented to the PCRA court when it was conducting merits review.
Accordingly, to complete our consideration of the Joint Motion, we proceed to merits review with respect to Claim VI.
*150 We review the denial of PCRA relief to decide whether the PCRA court's factual determinations are supported by the record and are free of legal error. Commonwealth v. Spotz , 610 Pa. 17 , 18 A.3d 244 , 259 (2011). When supported by the record, the PCRA court's credibility determinations are binding on this Court, but we apply a de novo standard of review to the PCRA court's legal conclusions. Id. We must review the PCRA court's findings and the evidence of record in a light most favorable to the Commonwealth as the winner at the trial level. Commonwealth v. Hanible , 612 Pa. 183 , 30 A.3d 426 , 438 (2011). Under Pennsylvania Rule of Criminal Procedure 909, which governs PCRA petitions in capital cases, the PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied "that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings." Pa.R.Crim.P. 909(B)(2). "[T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. D'Amato , 579 Pa. 490 , 856 A.2d 806 , 820 (2004).
In order to obtain collateral relief under the PCRA, a petitioner must establish by a preponderance of the evidence that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include, inter alia, a violation of the Pennsylvania or United States Constitutions or ineffectiveness of counsel, either of which "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i)-(ii). A petitioner must also show that the claims of error have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue has been previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2). An issue has been waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[ ]conviction proceeding." 42 Pa.C.S. § 9544(b).
With respect to claims of ineffective assistance of counsel, counsel is presumed to be effective, and the petitioner bears the burden of proving to the contrary. Hanible , 30 A.3d at 439 . To prevail, the petitioner must plead and prove, by a preponderance of the evidence, the following three elements: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice as a result of counsel's action or inaction. Id. With regard to the second prong (reasonable basis), "we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis." Hanible , 30 A.3d at 439 . We will hold that counsel's strategy lacked a reasonable basis only if the petitioner proves that a foregone alternative "offered a potential for success substantially greater than the course actually pursued." Spotz , 18 A.3d at 260 . Our review of counsel's performance "must be highly deferential." Commonwealth v. Tharp , 627 Pa. 673 , 101 A.3d 736 , 772 (2014) (quoting Strickland v. Washington , 466 U.S. 668 , 689, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) ). To establish the third element (prejudice), the petitioner must *151 show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Id.
Because a petitioner's failure to satisfy any of the above-mentioned elements is dispositive of the entire claim, "[a] court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the ineffectiveness test, the court may proceed to that element first." Id. at 747 . Counsel will not be found ineffective for failing to raise a meritless claim. Commonwealth v. Washington , 592 Pa. 698 , 927 A.2d 586 , 603 (2007).
In Claim VI, Brown contends that trial counsel was ineffective for failing to investigate and present certain mitigation evidence at the penalty phase of his trial. In particular, Brown contends that trial counsel should have presented (1) expert testimony regarding his psychiatric condition and potential brain injury, (2) lay testimony about additional childhood difficulties, and (3) evidence regarding his lack of prison infractions prior to trial.
In Tharp , this Court fairly summarized the relevant law in this area as follows:
It is well-established that capital counsel has an obligation under the Sixth Amendment to conduct a reasonably thorough investigation for mitigating evidence or to make reasonable decisions that make further investigation unnecessary. Commonwealth v. Lesko, 609 Pa. 128 , 15 A.3d 345 , 380 (2011) ; Commonwealth v. Sattazahn, 597 Pa. 648 , 952 A.2d 640 , 655 (2008) ; Strickland v. Washington, 466 U.S. 668 , 691, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Counsel's duty encompasses pursuit of all statutory mitigators of which he is aware or reasonably should be aware, unless there is some reasonable ground not to pursue the circumstance (such as when it might open the door to harmful evidence). Commonwealth v. Malloy, 579 Pa. 425 , 856 A.2d 767 , 787 (2004). In evaluating an ineffectiveness claim alleging counsel's failure to investigate and present mitigation evidence in a capital case, we consider a number of factors, including the reasonableness of counsel's investigation, the mitigation evidence that was actually presented, and the additional or different mitigation evidence that could have been presented. Lesko, 15 A.3d at 380 ; Commonwealth v. Collins, 585 Pa. 45 , 888 A.2d 564 , 580 (2005). None of the aforementioned factors is, by itself, dispositive, because even if counsel's investigation is deemed unreasonable, the defendant is not entitled to relief unless the defendant demonstrates that prejudice resulted from counsel's conduct. Id.
Tharp , 101 A.3d at 764 (internal quotation marks omitted).
a. Additional neuropsychological testing regarding brain injury testimony
We consider first Brown's argument that trial counsel was ineffective for failing to obtain neuropsychological testing that would have revealed brain damage. According to Brown, evidence of brain damage would have supported at least three mitigating circumstances, including sections 9711(e)(2) ("[t]he defendant was under the influence of extreme mental and emotional disturbance"); 9711(e)(3) ("[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired"); and 9711(e)(8) ("[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense").
*152 We begin by reviewing the reasonableness of trial counsel's investigation in this regard. Trial counsel retained Dr. Allen Tepper as an expert in psychology and forensic psychology. At trial, Dr. Tepper testified that in the past year, he had been retained to evaluate approximately "[thirty] criminal cases." N.T., 6/1/2005, at 210. Dr. Tepper stated that he did not "work for one side or the other," meaning that he has served as an expert for the prosecution, the defense, and as a court-appointed expert. Id.
Dr. Tepper requested a number of records, which trial counsel provided, including police reports, school records, past psychological and psychiatric evaluations, and reports relating to "different living situations in which [Brown] was involved." Id. at 213-14. On April 8, 2005, Dr. Tepper met with Brown privately for three and a half hours, at which time Dr. Tepper interviewed Brown and performed a psychological evaluation. Id. at 213. During this psychological evaluation, Dr. Tepper administered a series of psychological tests to assess his intellectual and emotional functioning. PCRA Petition, Appendix, Tepper Affidavit, ¶ 5. On May 23, 2005, for four and a half hours, Dr. Tepper interviewed numerous family members and friends. Upon reviewing all records and after meeting with the aforementioned individuals, Dr. Tepper concluded that he did not need to meet with Brown a second time. N.T., 6/1/2005, at 273.
At trial, Dr. Tepper testified that Brown's foot deformity contributed to early childhood difficulties and interfered with basic milestones, such as walking and crawling. Brown experienced instances of abandonment throughout his life. His stepfather abused him physically until he was approximately sixteen years old. Id. at 226-28. Brown fell within the average range of intelligence. Id. at 214-15. He suffered from learning and behavioral difficulties, which was evident in his school records. Id. at 216. Brown failed second, third and fourth grades, and through eleventh grade, he scored "extremely low" on standardized tests. Id. at 216, 218. Dr. Tepper acknowledged that Brown eventually obtained his GED, but Dr. Tepper also stated that it is possible for an individual with learning difficulties to obtain their GED. Id. at 219.
Dr. Tepper testified that prior to trial he had reviewed records of psychological testing conducted by Dr. Kenneth Moberg in September 1995, when Brown was sixteen years old. 12 Id. at 230. Dr. Tepper acknowledged that Dr. Moberg's report revealed "some slight indications of organic brain damage that can cause impulse control problems." Id. at 230. He further stated that Dr. Moberg had suggested that there was some "soft indications on one of the tests of possible organicity." Id. at 235. Despite the results reported by Dr. Moberg on this one test (the "Bender-Gestalt" test ), Dr. Tepper testified that "[t]here's no findings of any significant brain damage." Id. Dr. Tepper further indicated he had no evidence that Brown suffered from such a mental disturbance at the time of the killing. Id. at 279. Although Dr. Tepper believed Brown suffered from ongoing impulse control difficulties, he opined that Brown understood the difference between *153 right and wrong and was capable of conforming his conduct to law. Id. at 230.
In connection with the filing of the present counseled PCRA petition, Brown offered an affidavit from Dr. Tepper in which he conveyed that he reviewed Dr. Moberg's report and noted that it revealed brain organicity in Brown - which he apparently considered to be significant, as he indicated that he highlighted it in red. PCRA Petition, Appendix, Tepper Affidavit, 5/12/2014, ¶ 11. He further stated that, at that time, he called trial counsel to discuss, inter alia, Dr. Moberg's report, although he could no longer recall the substance of those conversations. Id. , ¶¶ 12-13. Two members of Brown's trial counsel team also submitted affidavits, both of which state that while there was some overlap, Attorney Daniel Rendine had primary responsibility for the guilt phase of the trial and Attorney Judith Rubino was primarily responsible for the penalty phase of the trial. PCRA Petition, Appendix, Rendine Affidavit, ¶ 3; PCRA Petition, Appendix, Rubino Affidavit, § 9. Attorney Rendine's affidavit contains no testimony regarding the substance of the conversation with Dr. Tepper. Attorney Rubino's affidavit states that if Dr. Tepper had recommended any neuropsychological testing, she would have requested court funding to provide it. 13 PCRA Petition, Appendix, Rubino Affidavit, 5/8/2014, ¶ 9.
Dr. Tepper's affidavit further states that if he had been aware of Brown's organic brain impairment at the time of trial, he would have testified that, at the time of the shooting, Brown was under the influence of an extreme mental disturbance, 42 Pa.C.S. § 9711(e)(2), and that additional evidence existed to support an independent mitigating circumstance, 42 Pa.C.S. § 9711(e)(8). In connection with this testimony from Dr. Tepper, Brown also submitted reports from Dr. Carol Armstrong, who conducted testing and made findings of neurocognitive impairment; psychiatrist Julie Kessel, who opined that Brown's "use of language, paranoid content, bizarre associations, profound circumstantiality, and odd body language suggest pervasive organic impacts and a mixed personality disorder," and Ribem Gur, Ph.D., who opined that the results of imaging of Brown's brain showed "abnormalities indicating brain damage" that are "consistent with *154 several causes, including traumatic brain injury." PCRA Petition, Appendix, Tabs 43-45. As such, Dr. Tepper indicated that if he had been provided with access to neuropsychological testing of the type performed by Drs. Armstrong and Gur, his testimony at trial regarding Brown's possible brain damage would have been very different. PCRA Petition, Appendix, Tepper Affidavit, 5/12/2014, ¶ 15.
Based on these submissions, Brown's PCRA petition included a claim (Claim VI) contending that trial counsel was ineffective for failing to request neuropsychological testing to detect possible brain damage. Brown's Brief at 74. According to Brown, Dr. Moberg's report, which "reported possible brain organicity," should have "flagged for counsel the need for further testing." Id. at 75. Brown indicates that Dr. Tepper's affidavit reflects that he changed his opinion regarding possible brain injury based upon the reports from Dr. Armstrong and Dr. Gur. Id.
The PCRA court rejected this claim without an evidentiary hearing. Reviewing, inter alia, Dr. Tepper's affidavit and the record of Dr. Tepper's trial testimony, the PCRA court found as follows:
Trial counsel was not ineffective for fail[ing] to present additional mitigation evidence in the form of neurological testing, when the psychological expert he had retained, Dr. Tepper, did not recommend such testing. Prior to testifying at the sentencing phase, Dr. Tepper had made note of [Brown's] 1995 psychological testing which stated that [Brown] had brain organicity, yet he did not change his opinion at trial - or even remark on the possible significance of that earlier testing - he merely mentioned it prior to giving his conclusion. N.T., 6/1/2005, at 228-30. Nor did he recommend to trial counsel that a neuropsychologist be hired. He also did not ask counsel to seek a continuance so that he could look into this further. Now, having reviewed the study once again, along with the opinions of other experts hired by PCRA counsel, Dr. Tepper states that he would have ordered neuropsychological testing, and that he would have testified that "at the time of the incident in question ... [Brown] could have been described as being under the influence of an extreme mental disturbance." Dr. Tepper's Affidavit, 5/12/2014, Petitioner's Appendix, at 26. This is not a ground for trial counsel ineffectiveness, as trial counsel was not an expert, and not required to recognize red flags from [Brown's] records. As Dr. Tepper had this information available to him prior to his trial testimony, this claim fails.
Rule 907 Notice, 4/7/2016, at 52 (emphasis in original).
We find this reasoning and analysis to be both sound and supported by the certified record on appeal. In two cases dealing with claims that counsel was ineffective for failing to spot "red flags" of brain damage and order neuropsychological testing, this Court has ruled that courts may not conflate the roles and professional obligations of experts and lawyers by demanding that counsel spot "red flags" when the mental health expert they hired failed to do so. In Commonwealth v. Lesko , 609 Pa. 128 , 15 A.3d 345 (2011), the PCRA court granted Lesko PCRA relief based in part upon its finding that trial counsel did not consult a neuropsychologist, but instead retained a clinical psychologist, Herbert Levit, Ph.D. Dr. Levit reviewed available social history, interviewed Lesko and his family members and administered various psychological tests. He testified at trial that Lesko had borderline personality disorder and that at the time of the murders he was suffering from voluntary polysubstance abuse.
*155 On PCRA review, Lesko retained the services of a neuropsychologist, Dr. Barry Crown, who averred that there was sufficient evidence in the record to establish an indicia of brain damage, and that Dr. Levit's own psychological testing and diagnosis of borderline personality disorder were themselves "red flags" to a professional trained to spot organic brain damage. Id. at 377 . Further, Dr. Crown indicated that he had performed neuropsychological testing, which in fact revealed that Lesko was brain damaged. Id. at 378 . Based upon Dr. Crown's testimony, the PCRA court ruled that the retention of a neuropsychologist would have provided the jury with useful information when weighing mitigating factors, and trial counsel had provided no reasonable basis for not retaining a neuropsychologist to conduct further testing. Id.
This Court reversed, concluding that the PCRA court erred in placing "the burden of an expert's knowledge on counsel's shoulders...." Id. at 379 . We cautioned that "in applying Strickland , courts must be careful not to conflate the roles and professional obligations of experts and lawyers." Id. at 382 . We recognized that Dr. Crown found fault with the performance of Dr. Levit, not that of trial counsel. Id. at 377 .
Dr. Crown opined that the results of some of the testing conducted by Dr. Levit raised "red flags," which indicated that neuropsychological testing should be conducted. Certainly, these psychological "red flags" could not be directed at counsel, who was unschooled in mental health matters, but were directed at Dr. Levit. In fact, by the neuropsychologist's own testimony, the diagnosis of Borderline Personality Disorder - a diagnosis made by Dr. Levit, not trial counsel - should have raised a question relating to the possibility of brain damage.
Id. In sum, we ruled that a failure to spot "red flags" of possible brain damage that may call into question the performance of the retained mental health professional "is not the same thing as providing a basis to fault trial counsel's legal performance." Id.
We reaffirmed our decision in Lesko in Commonwealth v. Robinson , 623 Pa. 345 , 82 A.3d 998 (2013). In Robinson , on PCRA review, the appellant raised two arguments: first, that counsel failed to provide his retained mental health expert with school records that showed decreasing performances on IQ tests, a "red flag" for possible brain damage necessitating neuropsychological testing; and second, that counsel should have independently reviewed the school records and recognized the need for neuropsychological testing. With respect to the first issue, the PCRA court, based upon credibility determinations, concluded that counsel had in fact provided the school records to the mental health expert. With respect to the second, the PCRA court found no merit to this claim. On appeal, this Court affirmed on both issues, finding that the PCRA court's credibility determinations were supported by the factual record and that, based upon Lesko , it was the mental health expert's obligation, not counsel's obligation, to spot the "red flags" and recommend neuropsychological testing:
In light of the PCRA court's supported credibility determination that the records were provided to Dr. Sadoff, and Dr. Sadoff's unquestioned expertise, the Court would be hard pressed to fault trial counsel for failing to perceive a mental health "red flag" when the same information did not raise a red flag with the expert hired specifically for that purpose. This Court has made clear that in applying Strickland , courts must be careful not to conflate the roles and *156 professional obligations of lawyers and experts, and cannot demand that counsel, who otherwise act reasonably (as, for example, by hiring a mental health expert), recognize psychological "red flags." See Lesko , 15 A.3d at 382 . Appellant makes a bald assertion that counsel should have pointed out the decrease in the childhood IQ scores to his expert, but never explains why this should have raised a "red flag" to a lawyer, who is unschooled in mental health matters.
Id. at 1015 ; see also Commonwealth v. Fears , 624 Pa. 446 , 86 A.3d 795 , 807-08 (2014) ("It was reasonable for trial counsel to rely on Dr. Martone's conclusions appellant was coherent and had no mental disorders besides pedophilia. Thus, appellant fails to show trial counsel lacked a reasonable basis not to further explore his capacity to plead guilty and waive his penalty phase jury.") (citation omitted).
Based upon Lesko and its progeny, the PCRA court in this case correctly ruled that trial counsel did not err in failing to conduct an independent examination of Dr. Moberg's report and hire a neuropsychologist to conduct further testing. See Rule 907 Notice, 4/7/2016, at 52. As the PCRA court recognized, Dr. Tepper did not recommend to trial counsel that a neuropsychologist be hired, and he did not ask counsel to seek a continuance so that neuropsychological testing could be performed, more records could be reviewed, or further interviews could be performed to explore the possibility that Brown had brain damage. Id. Furthermore, Dr. Tepper's trial testimony makes it abundantly clear that Dr. Tepper did not consider Dr. Moberg's report to contain any "red flags" of brain damage, as he plainly and without qualification testified on direct examination that said report contained only "slight indications" of possible brain injury, and on cross-examination confirmed his opinion that there is "no finding of any significant brain injury." N.T., 6/1/2005, at 230, 235. Based upon this factual record, and in light of this Court's legal analysis in Lesko and Robinson , Dr. Tepper's affidavit is insufficient to establish any grounds for PCRA relief, as Dr. Tepper's contention that he would have testified differently if he had access to neuropsychological testing raises issues with his own performance, not with the performance of trial counsel. It was his role as the mental health expert, rather than the role of trial counsel, to recognize the "red flags" and recommend further testing. Lesko , 15 A.3d at 382 ; Robinson , 82 A.3d at 1015 . At bottom, Brown's ineffectiveness claim takes issue with Dr. Tepper's performance, not with that of trial counsel. 14
In his dissenting opinion, the Chief Justice contends that the PCRA court erred in not granting Brown an evidentiary hearing to develop a more complete factual record. In so doing, the Chief Justice relies exclusively on a single paragraph in the affidavit of Attorney Rendine which indicates that there was "no technical or strategic reason why neuropsychological testing was not done" in light of Dr. Moberg's report. Dissenting Op. at 198. The Chief Justice suggests that trial counsel likely knew what the word "organicity" in Dr. Moberg's report meant and thus should *157 have independently concluded that neuropsychological testing was necessary. Id.
The PCRA court did not abuse its discretion with respect to the denial of an evidentiary hearing on this issue. The record establishes that Dr. Tepper reviewed Dr. Moberg's findings prior to trial, determined that those findings were significant enough to discuss them with counsel, and yet did not recommend to counsel that any neuropsychological testing be administered. 15 PCRA Petition, Appendix, Tepper Affidavit, ¶¶ 11-13; PCRA Petition, Appendix, Rubino Affidavit, ¶ 9. This failure to recommend further testing is explained by Dr. Tepper's testimony at trial the next day, where he indicated that Dr. Moberg's report contained "no findings of any significant brain injury." N.T., 6/1/2005, at 235. The Chief Justice does not refer us to any authority requiring trial counsel to disregard the medical opinions of his or her retained expert witness and to instead act independently based upon counsel's own untrained observations of possible "red flags" in order to provide effective assistance of counsel. See generally Commonwealth v. Bracey , 568 Pa. 264 , 795 A.2d 935 , 942-43 (2001) ("[C]ounsel was not required to disregard the findings of his expert and continue to consult experts, at the expense of limited judicial resources, until he found one willing to testify that Appellant was organically brain damaged or manifested some kind of major mental illness."). Lesko and Robinson hold directly to the contrary, i.e., that an ineffectiveness claim cannot be based upon an assertion that counsel failed to spot a "red flag" that the mental health expert failed to spot. 16 Lesko , 15 A.3d at 382 ; Robinson , 82 A.3d at 1015 . In this regard, we note that the record here, including the affidavits of Attorneys Rendine and Rubino, contains no evidence to suggest that either trial counsel was schooled in mental health matters, and neither Brown nor the Commonwealth have suggested that trial counsel had received any formal training in this area sufficient to disregard Dr. Tepper's advice and instead act independently. 17 In *158 her affidavit, Attorney Rubino testified that she was relying on Dr. Tepper's expertise, since if he had recommended further testing she would have sought court funding to obtain it, and that if Dr. Tepper had identified any evidence that Brown had brain damage, she would have presented it to the jury. PCRA Petition, Appendix, Rubino Affidavit, ¶ 9.
For these reasons, we conclude that the PCRA court did not err in denying Brown relief on Claim VI of his PCRA petition without an evidentiary hearing. Brown did not raise a genuine issue of fact which, if resolved in his favor, would have entitled him to relief. The factual record is sufficiently developed to support the PCRA court's ruling that trial counsel acted reasonably in hiring a qualified mental health expert and relying upon his advice (or lack thereof) with respect to the need for neuropsychological testing. No relief is due on this claim.
b. Mitigation evidence from lay witnesses
We next consider Brown's claim that trial counsel was ineffective for failing to adequately interview certain lay witnesses, including various family members and friends. According to Brown, more thorough work in this area would have disclosed additional mitigation evidence not presented at the penalty phase of his trial, including the severe neglect and emotional abandonment by his mother and his displayed passivity and developmental delay as a child. Brown's Brief at 58. Specifically, Brown contends that trial counsel failed to present evidence of his mother's ongoing depression and that she wanted to place Brown and his brother in foster care. He asserts that trial counsel should have presented a former babysitter, Janet Peterson, to testify about his lack of social engagement as a young child. Id. at 71. He adds that "[e]arly hospital records" would have demonstrated his "lack of engagement" as a young child. Id. at 72. Also, according to Brown, trial counsel failed to elicit testimony from his grandmother regarding an incident that prompted the grandparents to remove Brown from his mother's household. Id. According to Brown, his grandmother would have testified that she observed Brown's stepfather beating Brown with a wiffle ball bat. Id.
Our evaluation of counsel's performance with respect to the investigation and presentation of mitigating evidence is highly deferential, and the reasonableness of counsel's decisions cannot be based on the distorting effects of hindsight. Commonwealth v. Mason , 634 Pa. 359 , 130 A.3d 601 , 647 (2015) (citing Commonwealth v. Bridges , 584 Pa. 589 , 886 A.2d 1127 , 1132 (2005) ). The PCRA court is "to develop a specific comparison of the mitigation case offered at trial with the credited evidence offered on post-conviction review...." Commonwealth v. Beasley , 600 Pa. 458 , 967 A.2d 376 , 391 (2009). In reviewing the PCRA court's determination, "we reweigh the evidence in aggravation *159 against the totality of available mitigating evidence, which includes the evidence presented at the penalty hearing and the evidence that would have been presented had counsel conducted a proper investigation." Commonwealth v. Gibson , 610 Pa. 332 , 19 A.3d 512 , 526 (2011).
We begin by reviewing the mitigation evidence that trial counsel actually presented at trial. Asenath Brown ("Asenath"), Brown's mother, testified about Brown's troubled childhood, including the fact that her son was born with a severe clubfoot and underwent multiple surgeries, requiring him to use a walker or a wheel chair at times. N.T., 6/1/2005, at 93-95. Brown had difficulty standing and walking and could not run or participate in normal activities as a child. Id. When Brown was seven years old, Asenath informed Brown that a man named James Dewitt, whom Brown had never met, was Brown's biological father. Id. at 96. Prior to that time, Asenath misled Brown into believing someone else was his father. Id. at 97.
When Brown was three years old, Asenath married Barry Mosey ("Stepfather"), an alcoholic who repeatedly beat Brown between the ages of three and seven. Id. at 98-99. Asenath recalled an incident when Stepfather arrived home drunk and slammed Brown against a wall. Brown suffered abrasions and bruises and had to go to the hospital. Id. at 99. According to Asenath, she did nothing to protect her children because she had to protect herself from Stepfather. Id. at 100-01. She admitted to beating Brown with a belt when he was a child. Id. at 103. At age seven or eight, after Brown's grandmother witnessed Stepfather beating Brown, Brown went to live with his grandparents. Id. at 102. While living with the grandparents, Brown's grandfather occasionally ordered Brown to strip so grandfather could beat him with an ironing cord as discipline. Id. at 112.
Brown is dyslexic and had to repeat grades two through four. Id. at 105-06, 109-10. Asenath testified that children at school teased Brown, calling him names such as "Blacky, Dark boy, [and] Tar Baby." Id. at 107. At age sixteen, Brown attended George Junior Republic School in Grove City until he turned eighteen. Id. at 114. Thereafter, Brown moved back home with his mother. Id. at 115. At age nineteen, he moved in with his girlfriend, Lisa Barber, with whom he shares two children. Id. at 116. According to Asenath, Brown eventually obtained his GED and attended community college. Id. at 128.
Azalee Brown ("Grandmother"), Brown's maternal grandmother, similarly testified about Brown's difficult childhood, including his club foot, surgeries, and the teasing that he endured. Id. at 135-36. She acknowledged that Brown's grandfather physically punished Brown. Id. at 140. When Brown was seven or eight, she tutored him and observed improvement in his school work. Id. at 138. She expressed her belief that Brown is of average intelligence. Id. at 148.
Vanessa Edwards ("Edwards"), a close friend of Brown's mother who has known Brown since he was a child, also relayed the difficulties Brown endured due to his club foot. Id. at 157-58. Brown and her son, Darien were very close. After Darien was murdered, Brown comforted her. Id. at 161. Edwards testified that she did not observe any noticeable emotional problems and believed that Brown was capable of conforming his conduct to law. Id. at 160, 166.
Fatima Hashim ("Hashim"), who was nineteen years old at the time of trial, shares a one year old son with Brown. Id. at 170. According to Hashim, she had a good relationship with Brown and never *160 found him to be a violent person. Id. at 171. She believed that Brown understood the difference between right and wrong. Id. at 175. She never observed anything that would lead her to believe that he was emotionally or mentally disturbed. Id. at 176.
Brown's grandfather, Raymond Brown ("Grandfather") recalled Brown's club foot and the surgeries that negatively impacted his childhood. Id. at 181. According to Grandfather, Brown was "kind of slow" and his dyslexia was an obstacle. Id. at 182. Grandfather and Grandmother insisted that Brown live with them because of Stepfather's verbally and physically abusive behavior. Id. at 184-85. Grandfather admitted to occasionally disciplining Brown by beating him with a belt for things like skipping school. Id. at 185. Grandfather testified that he ordered Brown to remove all clothing before the beatings he inflicted because it was psychologically embarrassing. Id.
Thomas Dulin ("Dulin") testified that in 1996, he was involved in a program called "More Opportunity and Responsibility to Develop Yourself." N.T., 6/2/2005, at 24. During that time, Dulin lived in Northeast Philadelphia and served as a case manager and a proxy for program participants who were placed to live with him and his family. Through the program, Brown lived with Dulin for about one year from 1996-97. Id. at 25. Dulin provided Brown with a stable environment and testified that Brown never gave him any problems. Dulin testified that "the Lavar I knew then I would have never expected to be here today in this situation." Id.
LaChe Brown ("LaChe"), Brown's older brother, testified about the abuse Stepfather inflicted. Stepfather used a wiffle ball bat as a weapon. Id. at 36. According to LaChe, their mother never protected them, nor did she ever spend any time with Brown. Id. at 37. Brown was often teased and got into a lot of fights. Id. at 39.
Based upon this testimony as well as that from Dr. Tepper, the PCRA court, as per its obligation to do so, compared the mitigation case actually offered at trial with the credited evidence offered on post-conviction review:
[Brown] claims that trial counsel failed to adequately interview [his] family members and friends, either in a timely fashion or not at all. [Brown] claims that, as a result of this, counsel failed to uncover evidence of his mother's depression, evidence that she wanted to place [Brown] and his brother in foster care, evidence that [Brown] was "unusually passive" as a child, evidence that everyone in his grandmother's household "got beat," and evidence that [Brown] had favorably adjusted to prison. Because the absence of this information did not prejudice [Brown], this claim fails.
In light of all of the evidence heard at the sentencing phase of [Brown's] trial ... [Brown] was not prejudiced by counsel's failure to discover this additional information. At the penalty phase, the jury heard from [Brown's] psychological expert, as well as from a number of his family members and close friends. The jury heard that, as a child, [Brown] had a club foot and had to undergo many painful surgeries and, as a result, did not walk properly. [Brown] was physically abused by his step-father, and his mother did nothing to intervene. The jury heard that the abuse got so bad that [Brown] was hospitalized and had to go live with his grandparents, where he was also subjected to physical abuse by his grandfather when he was disciplined. The jury heard about [Brown's] learning disabilities, his dyslexia, and the fact *161 that [Brown] had to repeat a number of grades in elementary school. Finally, the jury heard from Dr. Tepper, who spent hours evaluating [Brown] and his family members, who reviewed voluminous records, and who, despite all of [Brown's] history, opined that [Brown] did not suffer from any substantial brain injury. In light of all of this testimony, the outcome would not have been any different had the jury heard this additional information, and the claim fails.
Rule 907 Notice, 4/7/2016, at 52-53.
Based on our review of the entirety of the certified record on appeal, we agree with the PCRA court's comparison and conclusion. The evidence that Brown now contends should have been introduced is largely cumulative of the evidence that was in fact presented at the penalty phase of the trial. The minimal additional mitigation evidence identified by Brown during post-conviction review provides little or no basis for concluding that the outcome of the sentencing proceeding would have been different if trial counsel had presented this additional evidence to the jury. Finding no error in the PCRA court's determination, we grant no relief on this claim.
c. Brown's prison behavior
Finally, Brown asserts that trial counsel was ineffective for neglecting to present evidence that he had no violent infractions while housed in state prison. This evidence would have showed that he was "a well-behaved and well-adjusted prisoner." Brown's Brief at 73. This claim fails because the record reveals that Dr. Tepper reviewed Brown's prison records and testified that Brown had no serious infractions while in prison. N.T., 6/1/2005, at 232-33. Thus, the jury was aware of this information.
For these reasons, we conclude that the PCRA court did not err in denying Brown's Claim VI.
Brown and the Commonwealth rely on the argument that the PCRA court erred in its ruling on Brown's Claim VI to support a merits basis for the Joint Motion. Since we conclude that the PCRA court did not err in this regard, the Joint Motion is denied.
Guilt Phase Issues
Having denied the Joint Motion, we turn to consideration of the guilt phase issues that Brown raised in his PCRA petition.
I. Eyewitness Testimony
Brown's first issue consists of four distinct arguments, all relating to trial counsel's alleged ineffective assistance with respect to the eyewitness testimony presented by the Commonwealth at trial. Brown challenges (a) trial counsel's failure to hire a forensic investigator; (b) trial counsel's failure to request a Kloiber charge with respect to Smith and to object to an allegedly defective Kloiber charge with respect to Ellison; (c) trial counsel's ineffective cross-examination of Ellison regarding her in-court identification of Brown; and (d) trial counsel's failure to present the eyewitness testimony of Gonzalez.
a. Trial counsel's failure to hire a forensic investigator
Brown first asserts that trial counsel should have retained a forensic investigator to offer testimony that could have been used to impeach the damaging eyewitness testimony of Smith and Ellison. Both Smith and Ellison testified that they were a mere three to five feet away from Brown when they saw him shoot Crawford. Brown's PCRA counsel hired a forensic investigator, Robert Tressel ("Tressel") to *162 visit the crime scene and review affidavits, crime scene photographs, discovery and transcripts. Tressel visited the crime scene on December 12, 2013 and provided a signed affidavit expressing his professional findings. PCRA Petition, Appendix, Tressel Affidavit, 12/12/2013, ¶ 2. Based upon the locations of the three fired cartridge casings and his knowledge of the type and brand of the murder weapon, Tressel opined that the shooter fired from between seven to nine feet from the curb on the west side of Watts Street, and based upon the trial testimony and a subsequently obtained affidavit from Ellison, he further opined that the minivan where Smith and Ellison were located was between fifty and fifty-three feet from the Watts Street west side curb. Id. , ¶¶ 3-6. As a result, Tressel indicated that if he had been retained to testify on behalf of Brown at trial, he would have informed the jury that Smith's minivan was between forty to forty-six feet from the shooter, rather than just three to five feet away as Smith and Ellison both testified. Id. , ¶¶ 7-8.
This claim fails because Brown cannot establish either that trial counsel lacked a reasonable strategic basis for his actions or that Tressel's testimony would have impacted the trial's outcome. As indicated hereinabove, with respect to the reasonable strategic basis element of an ineffectiveness claim, the issue is not whether there were other courses of action that counsel could have pursued, but whether the course taken had any reasonable basis. Hanible , 30 A.3d at 439 . In this case, trial counsel did not hire a forensic investigator to establish the apparent disparity in the distance that Smith and Ellison were from the shooting and their testimony regarding the same. Instead, trial counsel chose to attempt to refute their testimony through both cross-examination and the use of the testimony of other witnesses (including the Commonwealth's own forensic investigators). In multiple cases, this Court has held that "[t]rial counsel need not introduce expert testimony on his client's behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony." Commonwealth v. Chmiel , 612 Pa. 333 , 30 A.3d 1111 , 1143 (2011) ; see also Commonwealth v. Treiber , 632 Pa. 449 , 121 A.3d 435 , 454 (2015) ; Commonwealth v. Copenhefer , 553 Pa. 285 , 719 A.2d 242 , 253 (1998) ; Commonwealth v. Williams , 537 Pa. 1 , 640 A.2d 1251 , 1265 (1994). In Hanible , we rejected a substantially identical claim as that presented here, involving a contention that trial counsel should have hired Tressel to testify regarding the precise location of a van. We did so because "trial counsel cannot be deemed ineffective for failing to obtain the opinion of an independent crime scene expert when the forensic investigators who actually examined the scene obtained evidence favorable to Appellant, which trial counsel utilized in his cross-examination of the Commonwealth's witnesses." Hanible , 30 A.3d at 449 .
As the PCRA court here observed, and the certified record reflects, trial counsel ably cross-examined Smith and Ellison regarding their claims of proximity to the shooter. Also, and importantly, during his cross-examination of Rahill, the Commonwealth's forensic crime scene investigator, trial counsel successfully utilized the witnesses' various marks on the Diagram to demonstrate that Smith and Ellison were considerably further away from the shooting than they believed. Rahill testified that, assuming the witnesses accurately marked their locations on the Diagram, Smith and Ellison were 160 feet to 240 feet away from where Anderson marked his location on the Diagram. Rahill also testified that the distance from where the fired shell casings were found and where Crawford fell was approximately 110 feet from *163 Smith and Ellison. Trial counsel reiterated in his closing argument that neither Smith nor Ellison were as close to the shooting as they testified. N.T. 5/31/2005, at 114, 119-20. Based upon these concessions, we cannot conclude that trial counsel's chosen strategy lacked a reasonable basis.
Rahill's testimony also reflects that the failure to hire Tressel to testify at trial did not prejudice Brown, as it would not have resulted in a different outcome at trial. Rahill's testimony was significantly more favorable to Brown than Tressel's would have been. Tressel would have testified that Smith and Ellison were a mere forty to forty-six feet from the shooter, while Rahill told the jury that (based on the Diagram) Smith and Ellison were between 160 and 240 away from Anderson, who in turn testified that he was six feet away from Brown when the shots were fired. The jury heard Rahill's testimony, but still chose to find Brown guilty, as it either chose to believe Smith and Ellison instead or did not find the discrepancy in distance to be material to their decision.
b. Kloiber charges
Brown next argues that trial counsel was ineffective for failing to request a Kloiber charge with respect to Smith and Ellison. A Kloiber charge is appropriate when the accuracy of the testimony of an eyewitness' identification is "so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution." Commonwealth v. Kloiber , 378 Pa. 412 , 106 A.2d 820 , 826-27 (1954). A trial judge must provide the instruction "where the eyewitness: (1) did not have an opportunity to clearly view the defendant; (2) equivocated on the identification of the defendant; or (3) had a problem making an identification in the past." Commonwealth v. Ali , 608 Pa. 71 , 10 A.3d 282 , 303 (2010). A Kloiber charge is not mandatory "[w]here an eyewitness has had 'protracted and unobstructed views' of the defendant and consistently identified the defendant 'throughout the investigation and at trial.' " Id. (quoting Commonwealth v. Dennis , 552 Pa. 331 , 715 A.2d 404 , 411 (1998) ).
With respect to Smith, the trial court determined that no Kloiber instruction was necessary. Brown challenges the failure of trial counsel to object on two grounds. First, Brown asserts that the distance between Smith and the shooting (approximately forty feet, using Tressel's estimate) left her in a location where it was difficult to get a clear look at the shooter. Brown's Brief at 13. Second, he states that there were inconsistencies in her identification testimony over time. Id. at 13-14. In this regard, Brown asserts that Smith testified that Crawford was shot in the chest, but the medical examiner's testimony revealed that Crawford was shot in the back. Brown also argues that Smith stated at the preliminary hearing that she lost sight of the shooter, but at trial she said she never lost sight of him. Id. at 12. Finally, he contends that in her police statement, Smith stated that she heard four shots, but her testimony regarding the number of shots she heard varied at trial. Id. at 12.
Neither argument is meritorious. With respect to the first argument, we have reviewed the apparent discrepancies regarding Smith's distance from the shooter. Smith's trial testimony was unequivocal - that she was four to five feet away from the shooter (close enough to see the blue light emitting from the silver handgun), and that at no time did anything obscure her unobstructed view of Brown's face. N.T., 5/25/2005, at 51. Because Smith had "protracted and unobstructed views" of the defendant and consistently identified the defendant "throughout the investigation and at trial," there was no need for a *164 Kloiber instruction. See, e.g., Dennis , 715 A.2d at 411 .
In support of his contrary assertion, Brown cites to two prior Superior Court decisions, Commonwealth v. Simmons , 436 Pa.Super. 203 , 647 A.2d 568 (1994), and Commonwealth v. McKnight , 307 Pa.Super. 213 , 453 A.2d 1 (1982). We agree with the Commonwealth that those cases have no application in the present circumstance, as they both involved situations where the evidence at trial established that the witnesses had only an obstructed view of the relevant events. See Simmons , 647 A.2d at 570 ("There was testimony offered at trial that the shed door could not be seen at all from the location at which the witness claimed he was standing at the time of the crime, and there was evidence that a person leaving from the side door could not be clearly seen."); McKnight , 453 A.2d at 2 ("he never saw more than a profile of any of the three").
With respect to Brown's second argument, Brown has at best identified certain discrepancies in Smith's identification testimony over time This Court has never required a Kloiber charge, or found counsel ineffective for failing to request one, merely because a witness was uncertain about, or inconsistent with, certain details of the crime. See, e.g., Commonwealth v. Reid , 627 Pa. 78 , 99 A.3d 427 , 449 (2014) ("[T]he need for a Kloiber charge focuses on the ability of a witness to identify the defendant.") (emphasis in original); Ali , 10 A.3d at 303 ; Commonwealth v. Paolello , 542 Pa. 47 , 665 A.2d 439 , 455 (1995) (no Kloiber charge required where inconsistencies in testimony go to witness credibility rather than physical ability to observe the incident). Smith testified that she had an unobstructed view of Brown's face at the time of the shooting, when he ran past, and when she identified him at the time of his arrest. She also never equivocated in her identification of Brown or failed to identify him on any occasion prior to trial. As none of the Kloiber factors are present with respect to Smith, Brown's claim of ineffectiveness on this ground is meritless.
We agree with Brown that Ellison's inconsistency in her identification of him at trial, as detailed hereinabove, necessitated a Kloiber charge for this witness. No basis exists for an ineffectiveness claim, however, as the trial court in fact provided such a cautionary instruction to the jury:
In her testimony Christina Ellison identified the defendant as the person who committed the crime. There could be a question in this case of whether this identification is accurate. A victim or other witness can sometimes make a mistake when trying to identify the criminal. If certain factors are present, the accuracy of identification testimony is so doubtful that a jury must receive it with caution. Identification testimony must be received with caution if the witness in her testimony is not positive as to identity or if the witness'[ ] positive testimony as to identity is weakened by not identifying the defendant when first asked if she saw in this courtroom the person whom she saw do the shooting. If you believe that either or both of these factors is present in this case, then you must consider with caution the testimony of Christina Ellison identifying the defendant as the person who committed the crime. If, however, you do not believe that either of these factors is present, then you need not receive the testimony from Christina Ellison with caution. You may treat it like ordinary testimony, as a statement of fact. You should consider all evidence relevant to the question of who committed the crime, including the testimony of Christina Ellison. You cannot find the defendant guilty unless you are satisfied, *165 beyond reasonable doubt, by all the evidence, direct and circumstantial, not only that the crime was committed, but that it was the defendant who committed it.
N.T., 5/31/2005, at 196-98 (emphasis added).
Brown contends that trial counsel was ineffective for failing to object to the bolded portion of the instruction on the grounds that once it is determined that a Kloiber charge is necessary, the trial court has an obligation to instruct the jury that it must receive Ellison's identification testimony with caution, rather than leaving it up to the jury to consider how much weight the identification testimony deserves. Brown's Brief at 16 (citing Kloiber , 106 A.2d at 826-27 ). A review of the record, however, reveals that trial counsel did object:
[Trial Counsel]: I believe when you were talking about the identification of Christina Ellison, that you - that you - what I wrote down that you said was [that if Ellison identified Brown]; you should believe the testimony of [Ellison]. I believe what you meant to say was that if you believe that she failed to identify him, you should treat the - the testimony of [Ellison] with caution.
[the charge was read back by the court reporter]
[Trial Counsel]: That's right, Judge. I kind of misheard. It sounded like the way I heard it, it was disjointed. But you did say it; there's no doubt about it.
The Court: Okay.
[Trial Counsel]: But I would like to say this, Judge: That I kind of think that charge, the way you gave it, you came out and said that [Ellison] identified [Brown] in court. The whole purpose of the charge is to emphasize that she failed to identify him in court. And I'm not too sure that the way that charge is read as a whole -
The Court: Well, she didn't fail to identify him.
[Trial Counsel]: Well, she did at first.
The Court: Well, then she ended up identifying. That's how I gave it .... Your objection is noted.
N.T., 5/31/2005, at 204-08.
Accordingly, trial counsel did object to the trial court's instruction, arguing that the trial judge had wrongly advised the jury that it could ignore the Kloiber charge if it concluded that Ellison was positive in her identification of Brown and that her subsequent positive identification (on redirect examination) was not weakened by her prior failure to identify him when she was asked (on direct examination) if she saw the shooter in the courtroom. Accordingly, this claim of ineffectiveness is meritless. 18
c. Cross-examination of Ellison
Brown's next claim focuses on trial counsel's cross-examination of Ellison. As indicated hereinabove, during direct examination, when asked whether she saw the shooter in the courtroom, Ellison responded that she did not know. N.T., 5/25/2005, at 149-50. Brown contends that on cross-examination, trial counsel, by using the phrase "my client" to refer to the man the police brought back in handcuffs to Smith's minivan for identification, opened the door to permit the Commonwealth, on redirect examination, to give Ellison a second opportunity to identify Brown as the shooter. This claim relies on *166 the following excerpts from Ellison's trial testimony, the first of which is from her cross-examination by trial counsel:
[Trial Counsel]: Okay. After it happened, you did see my client in custody; is that correct?
[Ellison]: Yes.
[Trial Counsel]: And he was brought in handcuffs and put in a police car; is that what happened?
[Ellison]: Yes.
* * *
[Trial Counsel]: [Y]ou and Ms. Smith were down on the south side of Girard Avenue where you showed the jury?
[Ellison]: Yes.
[Trial Counsel]: Police come by with my client; correct?
[Ellison]: (Nods head)
[Trial Counsel]: And were you with Ms. Smith then?
[Ellison]: Yes.
[Trial Counsel]: Where were you and Ms. Smith at that time? Were you still in the car or were you--
[Ellison]: We were still in the car.
[Trial Counsel]: Okay. And is that the only time that you saw him after this incident?
[Ellison]: Yes.
Id. at 184-85 (emphasis added). This line of inquiry led to the following exchange between the prosecutor and Ellison during redirect examination:
[Commonwealth]: [Trial counsel] stood up. And one of the first things that he asked you was: You did see my client in custody? Do you remember him saying that?
[Ellison]: Yes.
[Commonwealth]: Okay ... when he said "my client," you looked over at his client; correct?
[Trial Counsel]: Objection, Your Honor.
The Court: Overruled.
[Ellison]: Yes.
* * *
[Commonwealth]: And then, after looking at him, you said, Yes?
[Ellison]: Yes.
* * *
[Commonwealth]: Why did you say "yes"?
[Ellison]: Because I recognized him.
[Commonwealth]: You recognized him as you sit here?
[Ellison]: Yes.
[Commonwealth]: Do you recognize him as the guy who shot that other guy you didn't know?
[Ellison]: Yes.
[Commonwealth]: Then why in the world, when I first asked you, did you tell the jury that you don't know if it's him?
[Ellison]: Because I didn't look at him as good as I see him now.
[Commonwealth]: Okay. I want you to take a good, long look at him right now, please.
* * *
[Commonwealth]: Okay. Is that the guy-- I'm pointing to the defendant in the brown or beige jacket -- who tried to get your number that time?
[Ellison]: Yes.
[Commonwealth]: Is that the guy you saw at least a couple of times in the year prior to the shooting hang out in the area of Watts and Girard?
[Ellison] : Yes.
[Commonwealth] : Is that the guy who was talking to the guy who's now dead?
[Ellison]: Yes.
[Commonwealth]: Is that the guy whose face you saw as he fired approximately four bullets into the man?
*167 [Ellison]: Yes.
[Commonwealth]: Is that the guy who was running away?
[Ellison]: Yes.
[Commonwealth]: Is that the guy who then ran back towards you on the south side of the street and passed you?
[Ellison]: Yes.
[Commonwealth]: Is that the guy the police brought back?
[Ellison]: Yes.
Id. at 212-15.
Brown now argues that trial counsel's reference to "my client" as the person the police brought back to Smith's minivan in handcuffs presumed a fact not in evidence, namely, that Brown was the man in handcuffs. Brown's Brief at 22. Brown maintains that trial counsel's cross-examination "established that missing link," and that absent this error, "the door would not have been opened to the prosecution's inquiry on redirect which resulted in her repeated identification of [Brown] as the shooter." Id. Brown insists that this "harmful identification" was highly prejudicial, as during closing arguments the Commonwealth emphasized Ellison's identification as one of three people (along with Smith and Sutton) who identified Brown in court as the shooter. Id. at 22-23.
We discern no error in the PCRA court's determination that Brown failed to demonstrate that trial counsel's remark prejudiced him. Rule 907 Notice, 4/7/2016, at 18. While Ellison did not identify Brown "directly" during her direct examination, she did do so indirectly. She testified on direct that the shooter was the man the police brought to Smith's minivan for identification. N.T., 5/25/2005, at 172-80. The jury also heard both Smith and Anderson testify that the shooter was the man the police brought back in handcuffs, and these witnesses also both testified that Brown was that man. In addition, Officer Sharrod Davis, who chased Brown on foot immediately after the shooting, positively identified Brown and verified that Brown was the person who police arrested and brought back to the scene in handcuffs. N.T., 5/26/2005, at 142, 154, 163. As a result, Ellison's testimony on direct, when combined with evidence presented by other witnesses, established Ellison's "indirect" identification of Brown as the shooter. As a result, her eventual identification on redirect examination was not prejudicial to Brown. This claim is therefore meritless.
d. Failure to call Janell Gonzalez as a witness
Brown next argues that trial counsel was ineffective for failing to call Gonzalez as a trial witness, as he contends that her description of the shooter would have undermined the descriptions of the shooter provided by Smith and Ellison. To prove that trial counsel provided ineffective assistance for failing to call a witness, a petitioner must demonstrate:
(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.
Washington, 927 A.2d at 599 .
In a 2013 affidavit provided to Brown's counsel, Gonzalez indicated that if she had been subpoenaed to testify, she would have done so. PCRA Petition, Appendix, Gonzalez Affidavit, 11/7/2013. She further indicated that her best recollection of the events of the day in question would have been included in the statement she gave to the police. Id.
*168 This ineffectiveness claim fails because Brown does not establish that trial counsel's decision not to call Gonzalez to testify prejudiced him. Gonzalez's testimony would likely have differed from that of Smith and Ellison in the following respects: (1) Gonzalez described the shooter as being five-feet eight inches tall, while Ellison testified that he was five feet ten to five feet eleven inches tall; (2) Gonzalez indicated that the shooter wore a white skully cap, but neither Smith nor Ellison referenced a cap; and (3) Gonzalez said that the shooter was wearing blue jeans, while Ellison testified that the shooter wore camouflage pants.
Gonzalez's testimony on these points, however, was substantially identical to that of Sutton, with whom she was walking towards the gas station when the shooting occurred. In her statement to police, Gonzalez described the shooter as "a black male, about 19 years old, about your height or a little smaller [five feet eight inches], dark brown skin, wearing a black waist length jacket, blue jeans, a white hat or skullie [sic]." PCRA Petition, Appendix, Gonzalez Police Statement, 12/10/2003. Sutton testified at trial that when she heard gunshots, she saw a man "in a white skully and like a black jacket and some blue jeans" shoot the victim, and that the shooter was dark skinned and about five feet seven to five feet nine in height. N.T., 5/27/2005, at 16.
During closing arguments, trial counsel highlighted the differences between Sutton's testimony regarding a white skully cap, in contrast to Smith's failure to recollect whether the shooter was wearing a hat at all. N.T. 5/31/2005, at 100-03. Because Gonzalez's testimony on these points would have been almost entirely cumulative of Sutton's actual trial testimony, it would have contributed little or nothing to trial counsel's efforts to call into question the discrepancies between the recollections of the various eyewitnesses. Absent any prejudice, this claim fails.
II. Impeachment of Anderson
For his second issue, Brown raises four claims related to trial counsel's alleged failure to effectively impeach Anderson: (a) trial counsel failed to impeach Anderson with evidence of pending drug charges in New Jersey; (b) trial counsel failed to impeach Anderson with evidence of his juvenile criminal history; (c) the Commonwealth violated Brady v. Maryland , 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 , (1963), by failing to disclose information related to Anderson's juvenile criminal history; and (d) trial counsel failed to present Justin Akines-Harris as a witness to impeach Anderson.
a. Anderson's pending drug charges
Brown argues that trial counsel should have cross-examined Anderson more extensively with evidence of Anderson's pending drug charges in New Jersey to demonstrate that Anderson's trial testimony was motivated by his desire to curry favor from the prosecution. Brown claims that prior to trial, New Jersey prosecutors engaged in plea negotiations with Anderson. Brown's Brief at 29. On June 6, 2005, after Brown's trial concluded, Anderson pleaded guilty to "failure to make a required disposition," a reduced charge, in exchange for a probationary sentence. See PCRA Petition, Appendix, Anderson Plea Form, 6/6/2005. Brown suggests that New Jersey prosecutors offered Anderson a more lenient sentence in exchange for his cooperation in Brown's murder trial. Brown's Brief at 29-30. According to Brown, trial counsel never uncovered these details because he failed to obtain Anderson's complete criminal file from New Jersey. Id. at 30.
*169 The PCRA court concluded that Brown's claim fails because he did not suffer prejudice. Rule 907 Notice, 4/7/2016, at 19. In support, the PCRA court reasoned that further investigation by trial counsel would not have altered the outcome of Brown's trial, as evidence of Anderson's pending charges was thoroughly elicited. Id. Further, Anderson did not officially plead guilty until after Brown's jury trial, and there was "no evidence to suggest that Anderson accepted any plea agreement prior to his trial testimony." Id. at 20. The PCRA court added that it provided clear instructions to the jury as to how they should consider Anderson's pending charges.
The PCRA court's conclusions are supported by the record. The record reveals that evidence of Anderson's open criminal matter in New Jersey was provided to the jury. The Commonwealth first questioned Anderson on this topic as follows:
[Commonwealth]: Now, Mr. Anderson, you currently have an open arrest; correct?
[Anderson]: Yes.
[Commonwealth] : In New Jersey, actually?
[Anderson]: Yes.
[Commonwealth] : And you are - have you gone to trial yet?
[Anderson]: I'm still - it's still pending right now.
[Commonwealth]: Okay. And you were charged with possession of narcotics with the intent to deliver; right?
[Anderson]: Yes.
[Commonwealth]: Either with having enough drugs or with drug dealing; correct?
[Anderson]: Yes.
[Commonwealth]: And there's a conspiracy charge, too; right?
[Anderson]: Yes.
[Commonwealth]: Have the police in New Jersey or the police here or me or anybody from a District Attorney's Office made you any promises on that case --
[Anderson]: No.
[Commonwealth]: -- in order to -- let me finish -- in order to get you to testify here today?
[Anderson]: No.
[Commonwealth]: As you sit here, do you expect that my office or the Philadelphia Police Department will help you beat that case or help you get a light sentence of anything like that?
[Anderson]: No.
[Commonwealth]: Have any written or oral deals been made with you?
[Anderson]: No.
N.T., 5/26/2005, at 57-58. Trial counsel then cross-examined Anderson about the pending charges:
[Trial Counsel]: You ... currently have an open case in New Jersey for possession with intent to deliver narcotics; correct:
[Anderson]: Yes.
[Trial Counsel]: And do you know what the maximum sentence you could receive in that case is?
* * *
[Anderson]: Three to five.
[Trial Counsel]: Three to five--
[Anderson]: Yes.
[Trial Counsel]: - years' incarceration; correct?
[Anderson]: Yes.
[Trial Counsel]: Did the ... Philadelphia D.A.'s Office, by any representative, tell you that if you testified, they would help you favorably resolve your New Jersey case?
[Anderson]: No.
*170 [Trial Counsel]: Did anyone from the police tell you that?
[Anderson]: No.
[Trial Counsel]: Did any detective tell you that they would appear at your sentencing if you were convicted in New Jersey and inform the [c]ourt that you had cooperated in a homicide investigation in Philadelphia?
[Anderson]: No.
[Trial Counsel]: Never discussed that with any members of the law enforcement community?
[Anderson]: No.
[Trial Counsel]: Do you have a lawyer that represents you in New Jersey?
[Anderson]: I have a Public Defender.
[Trial Counsel]: Did you ever discuss with your Public Defender that you expected favorable treatment from the authorities in Philadelphia if you helped them prosecute this homicide case?
* * *
[Anderson]: No.
Id. , at 64-66. The trial court then advised the jury as follows:
Regarding that case, I will tell the jury that in my initial instruction to you or part of what the instructions are to you is that charges are only charges. You may have heard me say that to you and that just because someone is arrested, it does not mean that they are guilty of anything.
The only reason that it is permitted to be brought out at all that this witness had an open case is so that the jury can evaluate for itself whether the fact that this person has this open case, were they at all testifying here in such a manner as to try to curry favor with the prosecution. Whether the prosecution had offered them anything or not, is this something that perhaps might be in their head and that that would, therefore, make them or lead them to perhaps tailor their testimony in any way.
And so that's why it's brought out, so that the jury can evaluate all of that as they decide who and what to believe.
Id. , at 114-15. During the jury charge, the trial court also provided the following instruction:
You have heard evidence that Rahsaan Anderson has an open case in New Jersey. Whenever a prosecution witness ... may be biased in favor of the prosecution because of outstanding criminal charges within the same jurisdiction, that possible bias must be made known to the jury, as was done in this case.
Even if the prosecution has made no promises on the present case or on other pending criminal matters, the law recognizes that the witness may hope for favorable treatment from the prosecutor if the witness presently testified in a way that is helpful to the prosecution.
It is for you, the jury, to consider whether such bias in favor of the prosecution exists in this case regarding Rahsaan Anderson's testimony and what weight, if any, you attach to it.
N.T., 5/31/2005, at 195-96.
Brown contends that trial counsel's cross-examination was incomplete, as Anderson had been charged with, inter alia, five counts of intent to distribute cocaine, four carrying maximum sentences of three to five years of incarceration and the fifth carrying a maximum sentence of eighteen months. Brown's Brief at 29. Several of these charges involved drug transactions in a school zone, which carried mandatory minimum sentences. Id. Moreover, Anderson did not disclose that he had been offered a plea deal (probation in exchange for pleading guilty to a single count in the indictment). Id. Anderson formally accepted the plea offer on June 6, 2005, eleven *171 days after Brown's trial concluded. Id. In exchange for his plea, Anderson received two years of probation. Id. at 30. According to Brown, reasonable investigation would have led trial counsel to this additional information, which would have resulted in a more effective cross-examination of Anderson. Id.
Other than speculation, Brown presented no evidence that prosecutors (either in Pennsylvania or New Jersey), offered Anderson a plea agreement in exchange for his testimony against Brown. Anderson provided his statement to police inculpating Brown on the night of the shooting, well before he was arrested and charged with crimes in New Jersey in October 2004, and his testimony (that Brown shot Crawford) remained unchanged thereafter. The PCRA court found that Brown had not demonstrated any prejudice associated with this claim, as it "was brought out on direct and cross-examination that Anderson was facing drug charges - possession of narcotics, possession of narcotics with intent to deliver, and conspiracy - in New Jersey. The jury was even instructed on how to consider Anderson's open case." Rule 907 Notice, 4/7/2016, at 20-21. Because Brown fails to establish that trial counsel's alleged derelictions impacted the verdict, this claim fails.
b. Anderson's juvenile adjudications
Next, Brown claims that trial counsel failed to impeach Anderson with evidence of his juvenile criminal history, which consisted of a 2000 adjudication for burglary and a 2001 adjudication for receiving stolen property, both in Montgomery County. Although the Commonwealth provided trial counsel with Anderson's FBI excerpt, the excerpt identified only Anderson's 2001 juvenile adjudication, and it mistakenly indicated that the adjudication was in Philadelphia rather than Montgomery County. According to Brown, if trial counsel had conducted a more thorough investigation, the discrepancies would have been discovered and accurate information regarding both adjudications could have been used to impeach Anderson, as they were crimen falsi crimes committed within the past ten years before trial and thus admissible under Pa.R.E. 609. Brown stresses that because of trial counsel's ineffectiveness, the jury did not have the benefit of the prior adjudications in assessing Anderson's overall credibility.
This claim lacks any arguable merit. This Court has summarized the relevant law in this area as follows:
"Counsel has a duty to undertake reasonable investigations or to make reasonable decisions that render particular investigations unnecessary." Commonwealth v. Basemore , 560 Pa. 258 , 744 A.2d 717 , 735 (2000) (citing Strickland , 466 U.S. at 691 , 104 S.Ct. 2052 ) (emphasis added); accord Wiggins [ v. Smith ], 539 U.S. [510,] 521-23, 123 S.Ct. 2527 [ 156 L.Ed.2d 471 ] [2003] [ ] (analysis of ineffectiveness claim for failure to investigate must "focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of Wiggins' background was itself reasonable "). Thus, counsel cannot be deemed ineffective for failing to investigate and introduce information he could not possibly have known about, so long as counsel's decision not to investigate was reasonable. See Commonwealth v. Sneed , 587 Pa. 318 , 899 A.2d 1067 , 1083 (2006) ("[C]ounsel cannot be deemed ineffective for not introducing information uniquely within the knowledge of the defendant and his family which is not supplied to counsel."); Commonwealth v. Malloy , 579 Pa. 425 , 856 A.2d 767 , 788 (2004) (counsel cannot be ineffective for failing to pursue particular mitigating evidence where counsel had no notice of *172 such evidence). However, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Wiggins , 539 U.S. at 528 , 123 S.Ct. 2527 (quoting Strickland , 466 U.S. at 690 -91 , 104 S.Ct. 2052 ).
Commonwealth v. Tedford , 598 Pa. 639 , 960 A.2d 1 , 39-40 (2008) (emphasis in original); see also Commonwealth v. Eichinger , 631 Pa. 138 , 108 A.3d 821 , 847 (2014) ("Counsel's strategic choices made after less than a complete investigation are considered reasonable, on a claim of ineffective assistance, precisely to the extent that reasonable professional judgments support limitations on the investigation. Failure to conduct a more intensive investigation, in the absence of any indication that such investigation would develop more than was already known, is simply not ineffectiveness.") (citation omitted).
No evidence of record suggests that trial counsel had any knowledge of the errors and omissions in Anderson's FBI excerpt, and they thus had no reasonable basis or obligation to obtain Anderson's juvenile records to verify the information that had been provided to them. As such, trial counsels' failure to conduct a more thorough investigation in this regard did not constitute ineffective assistance of counsel.
Moreover, even if we were to conclude that trial counsel should have conducted further investigation and uncovered the details with respect to the two crimen falsi crimes, we cannot say that Brown established any prejudice as a result of their failure to do so. On several occasions, this Court has held that the failure to impeach a witness with crimen falsi crimes is not per se prejudicial, so long as the record, taken as a whole, reflects that the witness was otherwise thoroughly cross-examined. See, e.g., Commonwealth v. Small , 602 Pa. 425 , 980 A.2d 549 , 565-66 (2009) ("Tucker's credibility was already assaulted to the nth degree - he was depicted as a crook, a recidivist, a drug abuser, a drunkard, and an admitted liar.... Consequently, we agree with the PCRA court that '[c]rimen falsi impeachment would have been merely cumulative and was unnecessary.' Essentially, Small was not prejudiced by counsel not cross-examining Tucker about crimen falsi as that information would have just reiterated a significant credibility attack that already occurred.") (citation omitted); Commonwealth v. Solano , 634 Pa. 218 , 129 A.3d 1156 , 1175 (2015) (finding appellant was not denied a fair trial and counsel did not act unreasonably in declining to question witness about a prior crimen falsi conviction where counsel impeached one of several eyewitnesses through other means).
c. The Commonwealth violated its Brady obligations
Brown next raises a brief and cursory Brady challenge, arguing that the Commonwealth failed to provide trial counsel with a complete report of Anderson's juvenile criminal history. Brown's Brief at 343. As discussed above, the FBI excerpt provided to trial counsel contained certain errors and omissions.
The United States Supreme Court in Brady established that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Commonwealth v. Reid , 627 Pa. 151 , 99 A.3d 470 , 496-97 (2014) (citing Brady , 373 U.S. at 87 , 83 S.Ct. 1194 ). To succeed on a Brady claim, an individual must prove the following:
*173 (1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory or impeaching, is helpful to the defendant; and (3) the suppression of the evidence prejudiced the defendant. Commonwealth v. Busanet, 618 Pa. 1 , 54 A.3d 35 , 48 (2012). To obtain a new trial based on the Commonwealth's failure to disclose evidence affecting a witness's credibility, a defendant must demonstrate that the reliability of the witness may be determinative of the defendant's guilt or innocence. Commonwealth v. Weiss, 604 Pa. 573 , 986 A.2d 808 , 815 (2000 [2009] ).
Id.
This Court has established that the prosecutorial duty under Brady respecting exculpatory evidence is limited to information in the possession of prosecutors or "in the files of police agencies[,] limited to those agencies of the same government bringing the prosecution." Commonwealth v. Watkins , 630 Pa. 652 , 108 A.3d 692 , 711-12 (2014). As a result, "Commonwealth prosecutors are not responsible to secure and disclose information held by federal authorities." Id. Here, the Commonwealth provided to trial counsel the information in its possession (the FBI excerpt), and had no obligation to investigate the accuracy of that information (as the FBI was not involved in bringing charges against Brown). We further agree with the PCRA court's observation that Brown "point[s] to no authority which states that the Commonwealth has to go above and beyond turning over a witness'[ ] FBI extract, or which states that the Commonwealth itself acted unreasonably in relying upon the information contained in that." Rule 907 Notice, 4/7/2016, at 24.
d. Counsel's failure to present Justin Akines-Harris as a witness
Next, Brown asserts that trial counsel should have presented another witness, Akines-Harris, to impeach Anderson's credibility. Of relevance to this argument, Anderson testified at trial that he was wearing a blue jacket when the shooting occurred and when police first stopped and frisked him. N.T., 5/26/2005, at 52. The morning of the shooting, Anderson claimed that he loaned a red jacket to a high school student named "Justice" or "Justin" who lived near him. Id. at 51-52. He did not know the boy's full name. Shortly after the shooting, Anderson claimed that he saw this boy again, the boy returned the red jacket to him, and Anderson put it on. Id. at 52-53. Anderson testified that as a result, when he went to a nearby restaurant, where the police approached him again, he was then wearing the red jacket. Id. at 53-54. While wearing the red jacket, the police put him in a patrol car and took him to the police station for questioning. Id. at 54.
Brown now claims that Justin Akines-Harris is the boy to whom Anderson claimed to have loaned his jacket, and that Akines-Harris would have testified that he never borrowed any jacket from Anderson. Brown's Brief at 31-32; PCRA Petition, Appendix, Akines-Harris Affidavit, 2/4/2013. This testimony, Brown asserts, would have undermined Anderson's explanation for changing his jacket, highlighting Anderson's guilt. Brown's Brief at 35-36. According to Brown, impeaching Anderson about changing his jacket would have significantly strengthened his defense, especially because trial counsel's strategy was to suggest that Anderson either killed Crawford or was protecting the person who killed Crawford. Id. at 36.
Brown waived this claim at trial. The trial court conducted the following colloquy with Brown:
The Court : Now, sir, are there any witnesses that you wanted to call or anything *174 that you discussed with [trial counsel] that is not going to happen at this trial? And I know that there's a few witnesses that are going to be called, and why don't we just state for the record who those are.
[Trial Counsel]: Judge, I intend to call Police Officer Kevin Fant, F-A-N-T, and Detective Gregory Rodden, R-O-D-D-E-N, who was the assigned detective in this case. And we may call the crime scene detective who did the crime scene, Detective David Baker and Detective George Fetters. Detective Fetters has not yet arrived. We've only interviewed Detective Baker.
The Cour

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6358387. Public record. Not legal advice.